Painters crushed by falling gate: Creation of dangerous condition: Failure to warn of danger: Settlement

Law Reporter, Mar 2004

Palestino v. Turner Constr., CaL, Orange County Super. Ct., No. 0ICC15786, July 11, 2003.

Palestine, 26, and Torres, 27, were painting a wrought iron gate that had recently been installed. The gate fell on top of them. Palestino sustained fractures to his tibia, shoulder, and knee, and a broken ankle, requiring several surgeries. His past medical expenses totaled about $78,000. Torres suffered a torn disk at L4-5 and successfully underwent an intradiscal electrothermal armuloplasty procedure. His past medical expenses were about $62,000.

Palestino and Torres were earning about $30,000 annually as painters at the time of their injuries. They did not claim lost earnings.

Palestino, Torres, and Torres's wife sued the general contractor, the owner of the premises, the gate manufacturer, and the gate installation company, alleging defendants were negligent in creating a dangerous condition and in failing to warn of the dangerous condition despite adequate notice. According to a foreman for the company that installed the gate, the gate was installed a week before, but still lacked the stop mechanism that would keep it from sliding out of its fasteners and falling.

Defendants claimed that Palestino, Torres, and their employer were negligent in failing to properly inspect the gate before beginning painting. Defendants also alleged that plaintiffs' remedy was limited to workers' compensation.

The parties settled for $750,000. Satisfaction of die workers' compensation lien reduced the amount to $450,000. Palestino received $225,000, and Torres received $225,000.

Plaintiffs' experts were Jerry Hildreth, construction site safety, Tehachepi, CaI.; Jacob Tauber, orthopedic surgery, Bevery Hills, CaL; and Arthur Kreitenberg, orthopedic surgery, Los Angeles, CaI.

Plaintiffs' Counsel

*William A. Daniels, Los Angeles, Cal.

*Arnold W. Schwartz, Los Angeles, Cal.

Richard M. Stewart, Simi Valley, Cal.